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2. His power as granted him by statute,

3. His power as delegated to him by the Senate, the co-possessor with him of the treaty-making power.

§ 199. International Powers of the President as Chief Executive: International Correspondence.

the hands of the

Hence it is im

International correspondence is exclusively in President, or his agent, the Secretary of State. proper for any international documents to be addressed to, or sent directly to the Senate, or for any attempt to be made, in any way, by an agent of a foreign power to influence directly the action of the Senate upon a treaty that is pending before it or is later to be sent to it for its action thereupon. Upon the other hand, it is, of course, improper for the Senate or any other organ of the Federal Government, by resolution or otherwise, to attempt to communicate with a foreign power except through the President. Thus, when in 1877 Congress passed two joint resolutions congratulating the Argentine Republic and the Republic of Pretoria upon their having established a republican form of government, and directing, in the one case, the Secretary of State to acknowledge the receipt of a despatch from Argentine, and in the other to communicate with Pretoria, the President vetoed both resolutions.*

By virtue of the power exclusively vested in him to conduct diplomatic negotiations between this and foreign countries, the President has, since early years, entered into numerous agreements with foreign chancellaries for the settlement of claims made by private American citizens against foreign governments. In a considerable number of cases, these claims have been settled by

3 Communications between the States of the Union and the Federal Government are made through the Secretary of State and not through the President. This rule was, however, several times disregarded by President Roosevelt.

For an

4 Richardson's Messages and Papers of the President, VII, 430. 5 An especially interesting case was that of the Mora claim. account of this by Professor J. B. Moore, see the Political Science Quarterly, XX, pp. 403 et seq.

means of arbitration agreed upon between the foreign offices concerned. After describing the various instances of executive action under this head, Professor Moore says: "It thus appears that, if we include only the more formal settlements, there have been thirty-one cases in which claims against foreign governments have been settled by executive agreement, and that twenty-seven arbitrations have been held under such agreements as against nineteen under treaties, where the settlement embraced claims against the foreign government alone and not against the United States.

6

In no case has the President attempted, without consulting the Senate, to adjust finally claims brought by foreigners against the United States. In no case, also, has the President, by executive action, attempted the settlement of claims set up by the United States in its own behalf.

$200. Protocols.

The term "Protocol," as used in International Law, has aseribed to it several meanings. The two most common of these meanings are:

1. As describing the records of the meetings of commissioners for the negotiation of a treaty. These records, though, of course, not parts of the treaty finally entered into, are often of value for the interpretation of such treaty.

2. As describing an agreement reached between the foreign offices of two countries, which has been reduced to definite written statement, but has not been ratified as a treaty by the States parties to it. How far such agreements, though not legally binding, morally bind the parties to them, depends upon the particular circumstances of each case.

& Political Science Quarterly, XX, p. 414.

7 In two instances claims of foreigners against the United States were submitted to arbitral tribunals by executive agreement, but in both instances it was expressly provided that any awards that might be made should be a claim not against the United States, but solely against the estates of certain American citizens whose estates were to be adjusted before the same arbitral tribunals. Cf Greenbag, XVII, 233, Article " Agreements of the United States Other than Treaties."

The most common use to which protocols in this sense are put, is in fixing the general terms in which a final treaty — especially a treaty of peace is to be negotiated. A recent example of this is the protocol of 1898 providing for the appointment of a commission to negotiate the Treaty of Peace with Spain.s

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The constitutional authority of the President without consulting the Senate to enter into protocols of agreement as the basis for treaties to be negotiated, is beyond question, and has repeatedly been exercised without demur from the Senate.

The protocol signed by the allies (the United States being among their number) at Pekin in 1901 after the Boxer troubles, though in the nature of a military convention, providing as it did for the withdrawal of the allied forces from Pekin, was yet practically of a treaty character. It provided for the payment of indemnities by China, for an international commission to receive and distribute these indemnities, the prohibition of the importation into China for two years of arms and ammunition, the delimitation of the legation quarters in Pekin, and for various reforms and concessions on the part of China. Commenting upon this protocol, Mr. Barnett observes: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. As has been pointed out above, purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot."

In the case of the Boxer Protocol, no serious objection was made to the President's failure to adjust the questions involved by

830 U. S. Stat. at Large, 1742.

9 For instances of protocols, see Butler, The Treaty Making Power, II, p. 371, note.

means of a treaty submitted to the Senate for its approval. When, however, in January, 1905, President Roosevelt entered into a protocol agreement with San Domingo for the administration of its customs with a view to providing for the adjustment and payment of foreign creditors of that country, it was immediately urged, upon the fact becoming known, that the action contem plated was one which could be authorized only by a treaty which had had the approval of the Senate. Though the protocol of Joa. ary 20th made no reference to the Senate's approval being necessary to its validity, and contained the provision that it was to go into effect on February 1st, the President disclaimed the purpose of entering into the arrangement without first obtaining the Senate's consent. The protocol, in amended form, expressly providing for the Senate's approval, was submitted to that body, but upon that body's failure to act upon it, the President, acting upon his own responsibility, was able to secure, informally, substantially the end aimed at in the protocol. A treaty governing the subject was finally approved by the Senate and ratified by the Dominican Government.

§ 201. Modi Vivendi.

As the term indicates, a modus vivendi is a temporary arrangement entered into for the purpose of regulating a matter of conflicting interests, until a more definite and permanent arrangement can be obtained in treaty form. Continued and unquestioned practice supports the doctrine that these modi vivendi may be entered into by the President without consulting the Senate.10

§ 202. International Agrcements Entered into by the President under His Military Powers.

In the exercise of his powers as Commander-in-Chief of the army and navy the President of the United States, from both necessity and convenience, is often called upon to enter into arrangements which are of an international character. These conventions do not require the approval of the Senate. A con

10 For instances of modi vivendi, see Butler, I, p. 369, note.

spicuous example of international agreements thus entered into is the protocol signed at Pekin in 1901, to which reference has already been made. All protocols of agreement entered into for the purpose of furnishing a basis for treaties of peace, as for example, the Protocol of 1898 with Spain, come under this head. So do all conventions providing in time of war for an armistice, or the exchange of prisoners, etc.

The President's military powers exist in times of peace as well as during war. And thus, in 1817, the President, without obtaining the advice and consent of the Senate, was able, by an exchange of diplomatic notes, to arrange with England regarding the number of vessels of war to be kept by the two powers upon the Great Lakes. So also, upon his own discretion, the President is able to send American vessels of war to whatever ports he sees fit, whether for the purpose of friendly visit, of furnishing protection to American citizens or their property, or of making a "demonstration" in order to obtain desired action on the part of the State thus overawed.

§ 203. International Agreements Entered Into, or Action Taken by the President, by Virtue of Authority Granted Him by Treaties Previously Ratified.

The preceding sections have considered the power of the President to enter into international agreements, and to take action with reference to matters of an international character, by virtue of powers inherent in him either as the Chief Executive of the Nation or as constitutional Commander-in-Chief of the army and navy. We turn now to a consideration of treaty-making powers which may constitutionally be exercised by him, without in each instance obtaining the advice and consent of the Senate, by virtue of general authority given to him in treaties previously entered into and approved by the Senate.

This question, which is one of both political expediency and of constitutional law, received thorough discussion both in Congress and the press in connection with the general treaties of arbitration which were agreed upon in 1904 and 1905 between Secretary

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